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Common Questions About Medical Negligence Claims

When we require medical care, we trust our doctors and healthcare professionals to make things right. When things don’t go as planned due to inadequate advice, skill or treatment, it can be a scary and confusing time.

If you’ve been the victim of medical negligence or malpractice, you’re probably feeling overwhelmed and searching for answers. Personal Injury Helpline can answer your questions and guide you through the medical negligence claim process.

Am I eligible to make a medical negligence claim?

The law surrounding medical negligence is different in each state and territory of Australia. Your personal injury lawyer can inform you of the legal requirements for your location.

Generally speaking, you may be entitled to make a claim if your healthcare professional has failed to:

  • Diagnose a medical condition within a reasonable timeframe
  • Treat a condition or provide a referral to a specialist
  • Monitor your condition
  • Complete a treatment or procedure with reasonable care and skill
  • Explain the risks of any medical treatment or operation
  • Report correctly or follow up test results
  • Provide reasonable care following an operation.

The grounds for a medical negligence claim may differ depending on your location.

What is required to make a medical negligence claim?

In Queensland, you’re required to prove the following to be entitled to make a claim:

  • Your doctor or medical practitioner’s treatment did not meet Australian standards
  • This negligence or malpractice lead to suffering or injury to you
  • Whether physical or psychological, this suffering or injury was a direct result of the doctor or hospital’s negligence or malpractice.

These requirements are relevant for Queensland only. Consult a professional personal injury lawyer to understand other state-specific requirements.

Can I make a claim if I’m the victim of a close call?

It is important to remember that you cannot make a claim unless damage has occurred as a direct result of the negligence of your medical practitioner. For example, if your doctor makes a mistake on the operating table but is able to rectify it, leaving you without pain or suffering caused by that negligence, you cannot make a claim against the doctor’s negligence.

Being the victim of a near miss generally does not provide grounds for a medical negligence claim. You need to prove that you have suffered pain or injury as a result of the negligence.

How do I prove medical negligence?

You need to prove that your doctor or hospital failed to reach the standard of care reasonably expected from a professional in the circumstances, directly resulting in pain, injury or loss. This may come in the form of medical records, professional opinions, proof of lost wages, or other documentation.

How do I get access to medical records?

You are legally entitled to access your personal medical records, unless those records would have a negative effect on your physical, mental or emotional wellbeing. Simply ask your hospital for a Freedom of Information request form to view your medical records.

How long do I have to make a claim?

Strict time limits apply to making a medical negligence claim. The timeframe will depend on the laws of where you live, but generally you are required to file a claim within 3 years for adults and 6 years for children. There is usually no limit for people with an existing disability.

How long do medical negligence claims take?

Depending on your individual circumstances, your medical negligence compensation claim can take up to several years to finalise. Factors that can influence the timeframe of your claim can include the strength of your claim, possible court delays, and whether each party can agree on a settlement.

Will I have to go to court?

Almost every medical negligence claim in Australia is settled before trial. In most cases, the malpractice insurers of the other party will offer a lump sum payment to avoid going to trial and face being sued.

How much compensation will I receive from my claim?

The damages you receive will depend on your individual circumstances. Factors that will affect your compensation might include:

  • Out-of-pocket expenses
  • Loss of wages
  • Level of pain and suffering
  • Loss of enjoyment of life
  • Loss of life expectancy
  • Care and assistance at home
  • Home and car modifications.

Your personal injury lawyer can provide advice regarding the approximate sum you might be entitled to should your claim be successful.

Can I make a claim for the death of a family member?

Yes. If your family member dies as the direct result of medical negligence or malpractice, you are eligible to file a compensation claim. These claims are limited to diagnosed psychological conditions (not normal grieving) and for the lost income dependants would have received from the deceased had the deceased lived.

How much does it cost to proceed with a medical negligence claim?

Personal Injury Helpline has access to experienced personal injury lawyers that offer a No Win No Fee service. This means that you don’t pay for any legal fees unless your claim is successful.

Can I represent myself in a medical negligence claim?

Medical negligence claims are often the most complicated claims to make. It can be very difficult to prove negligence without assistance from a personal injury specialist, especially with laws protecting medical professionals from being sued.

As the medical negligence law is so technical and can be confusing for those who are not familiar with the terms and regulations, it is recommended that you seek professional representation for the best chance at a successful claim.

Personal Injury Helpline gives you immediate access to personal injury lawyers who are experienced in medical negligence claims. Call today on 1800 435 754 or enquire online to discuss your situation.